Majority
p. 633WILCOX v. SELLECK, Sheriff. (Supreme Court, General Term, Fourth Department. December 26, 1895.) Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.
Headnote
Witness—Credibility—Party in Interest.In replevin for goods seized under an execution against plaintiff’s father, it was error to direct a verdict for plaintiff on his testimony and that of his father, where there was evidence that the father had an interest in the goods, as the jury were at liberty to disbelieve their testimony, because of their interest.
Appeal from circuit court, Oswego county.
Replevin by Edwin Wilcox against Wilbur H. Selleck, as sheriff of Oswego county. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.
Reversed.
The value of the property was agreed at $500, and the damages for detention were agreed to be $50; and, pursuant to the direction of the court, the jury found “that the plaintiff was the owner and entitled to the possession of the property described in the complaint, at the time the same was levied” upon by the defendant as sheriff. At the close of the evidence, when the court directed the jury to find a verdict that the title to the property was in the plaintiff, and that he was entitled to the possession thereof at the time of the commencement of the action, and that, as owner, he was entitled to the possession, the defendant took an exception, and asked to go to the jury on the question whether the plaintiff was the owner and entitled to the possession. The request was refused, and an exception was taken. Defendant then asked to go to the jury upon all the questions of fact in the case, and that was refused, and an exception was taken. The defense was a denial of the plaintiff’s ownership; and, secondly, that the sheriff, in virtue of an execution issued upon a judgment rendered in favor of Alfred B. Tuttle against Eugene R. Wilcox, had levied upon the property as the property of Eugene R. Wilcox, the judgment debtor. Proof was given of the judgment, and of the execution and of the levy.
William Ross, for appellant.
S. B. Mead, for respondent.
A careful perusal of the evidence leads to the conclusion that there was some evidence given upon the trial, which, if accredited by the jury, would have warranted a verdict in favor of the defendant. Several witnesses were called, who gave testimony which, if accepted entirely as given, would warrant us in sustaining the verdict as directed. The plaintiff and his father were so
p. 634
situated with reference to the controversy that the jury would have been authorized to disbelieve their testimony in part or in whole. We think the question of their credibility was for the jury, and that a case was presented, which ought to have been submitted to the jury, as to whether the ownership of the property at the time of the levy by the sheriff on the execution against Eugene R. Wilcox was in Eugene R. Wilcox, or whether it was in the plaintiff. Elwood v. Telegraph Co., 45 N. Y. 549 ; Longyear v. Insurance Co., 20 Wkly. Dig. 165 ; Carbon Works v. Schad, 38 Hun, 71 ; Dean v. Van Nostrand (N. Y.) 4 N. E. 134 ; Roseberry v. Nixon, 58 Hun, 122 , 11 N. Y. Supp. 523 ; Quock Ting v. U. S., 140 U. S. 422 , 11 Sup. Ct. 733 , 851; Goldsmith v. Coverly (Sup.) 27 N. Y. Supp. 116 . The rule seems to be quite well settled that a jury is not bound to believe an improbable statement made by a witness, or a statement made by a witness who has an interest in the question at issue, and that juries-are at liberty to scan, doubt, and question statements made by parties in interest in a suit, as well as their near relatives, who are interested in the success or defeat of the action in which they are called upon to testify. Evidence was given by the witness Stephenson and the witness Blake, who testified to a conversation in the presence of the plaintiff which, to a considerable extent, tended to support the theory of the defendant, that, at the time of the levy, Eugene R. Wilcox had an interest in the property levied upon. We think the judge at the trial committed an error, in refusing to submit the question of fact to the jury. Powers v. Silberstein, 108 N. Y. 169 , 15 N. E. 185 ; McCann v. Railroad Co., 117 N. Y. 505 , 23 N. E. 164 .
Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.
Cases cited
- Elwood v. Western Union Telegraph Co. 45 N. Y. 549 p. 634
- Powers v. Silberstein 108 N. Y. 169 p. 634
- McCann v. Sixth Avenue Railroad 117 N. Y. 505 p. 634